Castro v. Adams

Full title: HECTOR CASTRO, Petitioner, v. DERRAL ADAMS, Respondent

Court: United States District Court, E.D. California

Date published: Oct 31, 2008

1:07-cv-01595-TAG HC (E.D. Cal. Oct. 31, 2008)

Opinion

1:07-cv-01595-TAG HC.

October 31, 2008

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 7) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION (Doc. 1) ORDER DIRECTING CLERK OF COURT TO SEND PETITION FORM FOR FILING CIVIL RIGHTS COMPLAINT PURSUANT TO 42 U.S.C. § 1983

THERESA GOLDNER, Magistrate Judge

Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 2, 2007, Petitioner filed his petition for writ of habeas corpus in this Court. (Doc. 1).¹

1 Both parties have previously consented to the jurisdiction of the United States Magistrate Judge for all purposes. (Docs. 11 12). On May 27, 2008, the case was ordered reassigned to the Magistrate Judge for all purposes.

Petitioner challenges the results of a prison disciplinary hearing held on December 5, 2006 that resulted in a finding of guilt and an assessment of thirty days' loss of dayroom and ninety days' loss of visiting privileges. (Doc. 1, p. 7). Petitioner had been rinsing his shoes in a sink and removing sand from his shoes, which in the opinion of a corrections' officer, would have clogged the sink, the officer ordered Petitioner to stop washing his shoes in the sink, Petitioner refused, and the officer issued Petitioner a rules violation report for disobeying orders. (Id. at pp. 7-8). Petitioner contends that contends that his constitutional right to due process was violated because the prison rules did not expressly bar rinsing shoes in a prison sink. (Doc. 8, p. 2).

On January 11, 2008, the Court ordered Respondent to file a response. (Doc. 5). On March 11, 2008, Respondent filed the instant motion to dismiss, contending that because Petitioner was not challenging the fact or execution of his sentence, Petitioner had failed to state a claim for which habeas relief was possible. (Doc. 7). The Court agrees with Respondent.

DISCUSSION

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases;see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution. . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-142, 111 S. Ct. 1737 (1991); Preiser, 411 U.S. at 499; Badea v. Cox, 931 F. 2d 573, 574 (1991); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.

In this case, Petitioner complains that Respondent violated his constitutional right to due process by imposing a loss of dayroom and visiting privileges based on Petitioner's violation of a rule that Petitioner contends is nowhere to be found in the rules and regulations governing the issuance of rules violation reports. Petitioner does not challenge his conviction, and has not alleged that the prison disciplinary hearing's outcome has had or will have any direct effect on the length of his sentence.² Petitioner is thus challenging the conditions of his confinement, i.e., the temporary loss of dayroom and visiting privileges, not the fact or duration of that confinement. Hence, Petitioner is not entitled to habeas corpus relief, and this petition must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983.

2 Petitioner notes that the "Board of Parole Hearings monitors [his] incaceration [sic] behavior and will consider his misconduct," thus implicitly arguing that his disciplinary rules violation will in some way negatively impact any future consideration by the Board of Petitioner's suitability for parole. (Doc. 8, p. 2; Doc. 10, p. 1). However, as Respondent notes, the U.S. Supreme Court has concluded that any such impact is too attenuated to raise due process concerns. Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293 (1995) (because state's laws governing parole involve a balancing of many different considerations-the inmate's disciplinary record being only one-the likelihood that the inmate's disciplinary record will affect that balancing is simply too attenuated to invoke the protections of the Due Process Clause).

ORDER

Accordingly, the Court HEREBY ORDERS:

1. Respondent's motion to dismiss (Doc. 7), is GRANTED;

2 The petition for writ of habeas corpus (Doc. 1), is DISMISSED because the petition does not allege grounds that would entitle Petitioner to habeas corpus relief;

3. The Clerk of Court is DIRECTED to enter judgment against Petitioner and close the file; and

4. The Clerk of Court is further DIRECTED to send Petitioner the standard form for claims pursuant to 42 U.S.C. § 1983.

IT IS SO ORDERED.

INSTRUCTIONS FOR FILING A COMPLAINT BY A PRISONER UNDER CIVIL RIGHTS STATUTE 42 U.S.C. § 1983 I. Scope of Section 1983

An action under Section 1983 is available to challenge violations of the federal constitution or federal statutes which affect the conditions of your confinement or your treatment by government employees while in custody. Although you may ask for and obtain money damages or an injunction under Section 1983, the court cannot issue an order which could affect the length of your sentence in any way. Those types of claims may be raised only through a petition for writ of habeas corpus. If you want to file a petition for a writ of habeas corpus, you must do so on the correct forms, which are provided by the Clerk of the Court on request.

A. Exhaustion of Administrative Remedies

If there is an inmate appeal or administrative remedy process available at your institution, you may not file an action under Section 1983, or any other federal law, until you have first completed (exhausted) the process available at your institution. You are required to complete (exhaust) the inmate appeal or administrative remedy process before filing suit, regardless of the relief offered by the process. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Even if you are seeking only money damages and the inmate appeal or administrative remedy process does not provide money, you must exhaust the process before filing suit. Booth, 532 U.S. at 734.

II. Packet

A copy of a complaint form is attached to this instruction sheet. In addition, included in the packet is an information sheet for prisoners seeking leave to proceed in forma pauperis (without prepayment of filing fees) and a copy of an application to proceed in forma pauperis. To file an action, you must send all the following items to the court:

1. An original and one copy of the complaint. You must keep an additional copy of the complaint for your own records. All copies of the complaint must be identical to the original. If you wish to have a conformed copy of your complaint returned to you, you must send, in addition to the original, two extra copies and provide the court with a self-addressed postage paid envelope

2. Either a completed in forma pauperis application or the $350.00 filing fee.

NOTICE pre-payment See 28 U.S.C. § 1915

: Leave to proceed in forma pauperis allows a case to proceed without of the filing fee. However, a prisoner who brings a civil action in forma pauperis shall nevertheless be required to pay the full amount of the filing fee. The court shall collect the filing fee through deductions from the prisoner's trust account. Dismissal of the case does not excuse payment of the full filing fee. .

III. Complaint Form

Your complaint must be legibly handwritten or typewritten. You must sign the complaint and declare under penalty of perjury that the facts stated in the complaint are correct. If you need additional space to answer a question, you should attach an additional blank page. You are required to state facts in support of each claim. The complaint should refer to the provision of the federal constitution or federal law on which you are relying, but should not contain legal arguments or citations.

IV. Venue

Your complaint should be filed in the Fresno Division of this court only if one or more of the named defendants is located in the Fresno Division of the Eastern District of California, or if your claim arose in the Fresno Division of this district. The Fresno Division of the Eastern District of California is comprised of the following counties: Fresno, Calaveras, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne.

Your complaint should be filed in the Sacramento Division of this court only if one or more of the named defendants is located in the Sacramento Division of the Eastern District of California, or if your claim arose in the Sacramento Division of this district. The Sacramento Division of the Eastern District of California is comprised of the following counties: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, and Yuba.

V. Mailing the Forms

When all of the forms described in part II are completed, if you are filing your case in the Fresno Division, mail the original and copies to:

Clerk of the U.S. District Court for the Eastern District of California

2500 Tulare Street, Suite 1501

Fresno, California 93721-2201

If you are filing your case in the Sacramento Division, mail the original and copies to:

Clerk of the U.S. District Court for the Eastern District of California

501 "I" Street, Suite 4-200

Sacramento, California 95814

VI. After the Complaint is Filed

Once the complaint is filed, the court will review it and decide whether to order service of the complaint on the defendants. You will be sent a copy of any order the court issues. Because of the large volume of cases filed by inmates pending in this court, the court WILL NOT ANSWER INQUIRIES concerning the status of your complaint.

You must keep the Clerk of the Court informed of any change of address. If you fail to do so, the Clerk cannot be responsible for your failure to receive Court orders. This could result in the dismissal of your suit.

The Clerk of the Court cannot provide copies of documents to litigants, except at a charge of fifty cents ($0.50) per page. This charge also applies to litigants proceeding in forma pauperis. Therefore you must keep copies of all documents submitted to the court for your own records.

VII. Submission of Original Paper Exhibits

The Eastern District of California converted to an electronic filing, service, and storage system, effective January 3, 2005. Pro se litigants are exempt from the electronic filing requirement and must submit all documents to the court in paper. Local Rule 5-133(b)(2). Paper documents submitted by pro se litigants for filing will be scanned into the electronic court file by the Clerk's Office. After being scanned into the electronic court file, the paper documents will be retained in the Clerk's Office for a limited period of time and then discarded. Local Rule 39-138(d). For this reason, pro se litigants are cautioned not to send original exhibits to the court. If pro se litigants choose to submit exhibits to the court, the litigants shall retain their original exhibits and send photocopies to the court. 42 U.S.C. § 1983 I. Previous Lawsuits (list all other previous or pending lawsuits on back of this form): II. Exhaustion of Administrative Remedies ALL NOTICE: 42 U.S.C. § 1983 42 U.S.C. § 1997ebefore Booth v. Churner 532 U.S. 731 741 McKinney v. Carey 311 F.3d 1198 1999 Even if you are seeking only money damages and the inmate appeal or administrative remedy process does not provide money, you must exhaust the process before filing suit. Booth 532 U.S. at 734 III. Defendants IV. Statement of Claim facts V. Relief.

Plaintiff's Name ____________________ Inmate No. __________________________ Address _____________________________ _____________________________________ _____________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ____________________________________________________________________________________________________________ (Name of Plaintiff) (Case Number) vs. COMPLAINT ________________________________ Civil Rights Act, ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ (Names of all Defendants) A. Have you brought any other lawsuits while a prisoner? Yes ___ No ___ B. If your answer to A is yes, how many? ______________ Describe previous or pending lawsuits in the space below. (If more than one, use back of paper to continue outlining all lawsuits.) 1. Parties to this previous lawsuit: Plaintiff ____________________________________________________________________________________ Defendants ___________________________________________________________________________________ ____________________________________________________________________________________________________________ ______________________________________________________________________________________________ _________________________________ 2. Court (if Federal Court, give name of District; if State Court, give name of County) _______________________________________________________________________________________________ 3. Docket Number ___________________________ 4. Assigned Judge ____________________________ 5. Disposition (For example: Was the case dismissed? Was it appealed? Is it still pending?) _______________________________________________________________________________________________ 6. Filing date (approx.) __________________ 7. Disposition date (approx.) __________________ A. Is there an inmate appeal or administrative remedy process available at your institution? Yes ___ No ___ B. Have you filed an appeal or grievance concerning of the facts contained in this complaint? Yes ___ No ___ If your answer is no, explain why not _________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ C. Is the process completed? Yes ___ If your answer is yes, briefly explain what happened at each level. _______________________________________________________________________________________________ _______________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ No ___ If your answer is no, explain why not. _______________________________________________________________________________________________ ____________________________________________________________________________________________________________ _______________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions under [], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." (a). If there is an inmate appeal or administrative remedy process available at your institution, you may not file an action under Section 1983, or any other federal law, until you have first completed (exhausted) the process available at your institution. You are required to complete (exhaust) the inmate appeal or administrative remedy process filing suit, regardless of the relief offered by the process. , , (2001); , , (9th Cir. 2002). , . (In Item A below, place the full name of the defendant in the first blank, his/her official position in the second blank, and his/her place of employment in the third blank. Use item B for the names, positions and places of employment of any additional defendants.) A. Defendant ___________________________________ is employed as ___________________________________ ____________________________ at ___________________________________________________________ B. Additional defendants __________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ (State here as briefly as possible the of your case. Describe how each defendant is involved, including dates and places. Do not give any legal arguments or cite any cases or statutes. Attach extra sheets if necessary.) ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ______________________________________ (State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases or statutes.) ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________ I declare under penalty of perjury that the foregoing is true and correct. Date _____________________________ Signature of Plaintiff _______________________________________________ Name: CDC No: Address: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION CASE NUMBER: APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER _______________________________ _____________________________ ____________________________ ____________________________________________ Plaintiff, vs. Defendants. _________________________________/ I, _______________________, declare that I am the plaintiff in the above-entitled proceeding; that, in support of my request to proceed without prepayment of fees under 28 U.S.C. section 1915, I declare that I am unable to pay the fees for these proceedings or give security therefor and that I am entitled to the relief sought in the complaint.

In support of this application, I answer the following questions under penalty of perjury: (If "no" DO NOT USE THIS FORM) and IMPORTANT : This form must be dated and signed below in order for the court to consider your application. 28 U.S.C. section 1915NOTE

1. Are you currently incarcerated? ___ Yes ___ No State the place of your incarceration. ____________________________________ 2. Are you currently employed (includes prison employment)? ___ Yes ___ No a. If the answer is "yes" state the amount of your pay. _________________ b. If the answer is "no" state the date of your last employment, the amount of your take-home salary or wages and pay period, and the name and address of your last employer. 3. Have you received any money from the following sources over the last twelve months? a. Business, profession, or other self-employment: ___ Yes ___ No b. Rent payments, interest or dividends: ___ Yes ___ No c. Pensions, annuities or life insurance payments: ___ Yes ___ No d. Disability or workers compensation payments: ___ Yes ___ No e. Gifts or inheritances: ___ Yes ___ No f. Any other sources: ___ Yes ___ No If the answer to any of the above is "yes," describe by that item each source of money. Also state the amount received what you expect you will continue to receive (attach an additional sheet if necessary). 4. Do you have cash (includes balance of checking or savings accounts)? ___ Yes ___ No If "yes" state the total amount: __________________ 5. Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or other valuable property? ___ Yes ___ No If "yes" describe the property and state its value: ______________________________ 6. Do you have any other assets? ___ Yes ___ No If "yes," list the asset(s) and state the value of each asset listed: 7. List all persons dependent on you for support, stating your relationship to each person listed and how much you contribute to their support. I hereby authorize the agency having custody of me to collect from my trust account and forward to the Clerk of the United States District Court payments in accordance with (b)(2). ______________________________ ____________________________________________________ DATE SIGNATURE OF APPLICANT : Within sixty days from the date of this application you must forward to the court a certified copy of your prison trust account statement showing transactions for the past six months.